P L D 1954 Lahore 708 (PLP)

ABDUL AZIZ KHAN, J.‑‑Regular Second Appeal No. 273 of 1951 was fixed for hearing on the 9th of February, 1954 The case was called at 1‑20 p.m. but no one was present for the appellant. The appeal was, therefore, dismissed in default under Order XLI rule 11 (2) C. P. C. The present application was filed on the 13th of March, 1954 praying that the order dismissing the appeal in default be reviewed under Order XLVII rule 1 and that the appeal be readmitted for hear ing. The application was filed after the expiry of thirty days prescribed by Article 168 of the Limitation Act, for an application for the re‑admission of an appeal dismissed for want of prosecution. The period of thirty days prescribed for an application for restoration of the appeal cannot be enlarged under section 5 of the Limitation Act; Devi Das and others v. Anant Ram and others (91 I C168.) and R. C. Krishnasamy Naidu and others v. Changalnaya Naidu and others (I L R 47 Mad. 171.). The short question for determination is whether an order dismissing an appeal in default can be reviewed under Order XLVII rule i. Order XLI rule 19 reads:‑ "Where an appeal is dismissed under rule 11, sub‑rule (2), or rule 17 or rule 18, the appellant may apply to the Appellate Court for the re‑admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re‑admit the appeal on such terms as to costs or otherwise as it thinks fit". Order 47 rule 1 provides:‑ "Any person considering himself aggrieved‑‑‑ (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter and evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) a party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review". In Chhajju Ram v. Neki and others (I L R 3 Lah, 127.) Their Lordships of the Privy Council held‑ "Order XLVII rule 1 of the Code of Civil Procedure, 1908, must be read as in itself definitive of the limits within which review of a decree or order is now permitted, and the words `any other sufficient reason' means a reason sufficient on grounds at least analogous to those specified immediately previously. A Court hearing an application for a review of 1a decree made on appeal has, therefore, no power to order a review upon thead9round that the decision was wrong on the merits". In the words of Rankin J., in Bindubashini Roy Chowdhury v. Secretary of State (A I R 1924 Cal. 774 (775).) "the effect of Chajju Ram's case is that, under the words `other sufficient reason' the reason must be one having sufficiency of a kind analogous to the two specified cases that is to say, analogous to excuseable failure to bring to the notice of the Court new and important matter or analogous to error on the ace of the records". In the present case the appellant failed to appear on the date fixed for the hearing of the appeal through sheer negligence. If it be held that an order dismissing an appeal under Order XLI rule 11 (2) of the Code of Civil Procedure can be reviewed, it would amount to holding that in every case of manifest negligence, the Court would be entitled to reopen the matter by granting a review. This would leave the door open for an abuse of the safeguard intended by Order XLVII of the Code of Civil Procedure. In Manphul Singh v. Hakim Hamid Ali Khan (A I R 1923 All. 576.) it was held that an appellant whose appeal is dismissed for default and who has not availed of rule 19 of Order XLI within time cannot be allowed to apply for review. In Mahaden Govind Wadhkar v. Lakshminarayan Ramratan Marwadi (I L R 39 Bom. 839.) Sir Norman Macleod Kt. Chief Justice and Coyajee J. held‑ "When a suit has been dismissed for default under Order IX, rule 8 of the Civil Procedure Code, the only remedy open to the plaintiff is to apply under rule 9 in order to set aside the order of dismissal. It is not permissible to him to apply for a review of the order under Order XLVII, rule 1, of the Code". Although the above authority relates to a suit, by analogy it also applies to appeals. For the reasons stated above I am unable to accept the contention of the learned counsel that the order in question can be reviewed under Order 47 rule 1 of the Civil Procedure Code. The application is, there fore, dismissed with costs. A: H. Application dismissed.